Trustees of the Church Property for the Diocese of Newcastle v Newcastle City Council

[2023] NSWLEC 1220

Land and Environment Court

New South Wales

Medium Neutral Citation:

Trustees of the Church Property for the Diocese of Newcastle v Newcastle City Council [2023] NSWLEC 1220

Hearing dates:

28 and 29 March 2023

Date of orders:

09 May 2023

Decision date:

09 May 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA2022/00319, for the subdivision of Lot 3 in DP544502 into 2 lots, being St Andrew’s Anglican Church at 31A Church Street, Mayfield, subject to conditions of consent at Annexure A.

(3) All exhibits are returned except for Exhibit B, C and F.

Catchwords:

DEVELOPMENT APPLICATION– subdivision of land – whether adverse impact on heritage significance

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.3, 1.5, 4.16, 4.17, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 38

Newcastle Local Environmental Plan 2012, cll 1.9A, 2.6, 5.10, Sch 5, Dictionary

St Andrew’s Church of England, Mayfield, Cemetery Act 1957

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Parrott v Kiama [2004] NSWLEC 77

Texts Cited:

NSW Heritage Office, Interpreting Heritage Places and Items Guidelines, August 2005

Newcastle Development Control Plan 2012

Category:

Principal judgment

Parties:

Trustees of the Church Property for the Diocese of Newcastle (Applicant)
Newcastle City Council (Respondent)

Representation:

Counsel:
M Hall SC (Applicant)
F Berglund (Respondent)

Solicitors:
SWS Lawyers (Applicant)
Newcastle City Council (Respondent)

File Number(s):

2022/214947

Publication restriction:

Nil

Judgment

1. COMMISSIONER: St Andrew’s Church occupies a site at 31A Church Street, Mayfield, along with four other buildings and landscape features including mature tree plantings, a driveway and carpark, a low stone wall fronting the street and a sandstone memorial (the site). Relevantly, the site is also the final resting place of former residents of the Newcastle area (‘the former cemetery’).

2. The buildings on the site are distinguished as follows:

• The church building;

• Two single storey brick buildings to the east of the church (‘the two dwellings’);

• A face brick parish hall;

• A weatherboard parish hall.

3. The site is owned by the Trustees of Church Property for the Anglican Diocese of Newcastle (the Trustees), who seek consent to subdivide the land from one lot into two lots.

4. The two lots proposed would be known as Lot 31, with a total area of 5,331m², and Lot 32, with an area of 3,718m².

5. For clarity, the proposed Lot 31 would comprise:

1. the church, the two dwellings, existing mature trees, the driveway and the car park.

6. The proposed Lot 32 would comprise:

1. the weatherboard parish hall, the brick parish hall and the cemetery.

7. The boundary between the proposed lots is to essentially follow the back of the kerb forming the south of the carpark.

8. To this end, the Trustees, the Applicant in these proceedings, lodged development application DA 2022/00319 with Newcastle City Council (the Respondent) on 29 March 2022.

9. The development application was publicly notified from 6 to 20 April 2022, with no submissions resulting. The development application was also referred to Heritage NSW on 4 April 2022.

10. On 21 April 2022, Heritage NSW advised that no comment would be provided as the site is not listed on the state heritage register, and is not within the vicinity of any site so listed.

11. As the development application remained otherwise undetermined, the Trustees filed an appeal in Class 1 jurisdiction of the Court against the deemed refusal, under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

12. On 21 February 2023 the Trustees amended the development application by Notice of Motion comprising the following plans and other documents:

1. Amended plan of subdivision prepared by Curtis Haydon Smeaton dated 10 December 2022.

2. Draft annexure to s 88B Instrument prepared by SWS Lawyers.

3. Draft Deposited Plan administration sheet prepared by Curtis Haydon Smeaton dated 10 December 2022.

4. Revised Statement of Heritage Impact and Preliminary Archaeological Assessment prepared by Extent Heritage dated November 2022.

5. Concept plan prepared by Manns Troup Architects dated 28 October 2022.

6. Email correspondence from Respondent to the Trustees dated 13 February 2023.

13. At the commencement of the hearing, the Applicant sought to further amend the development application by tendering, unopposed, the following:

1. An amended survey prepared by Land Development Solutions later marked Exhibit B,

2. An amended plan of subdivision, and deposited plan later marked Exhibit C,

3. A Car Park Plan of Management later marked Exhibit D,

4. An Amended Statement of Heritage Impact and Archaeological Assessment marked Exhibit G,

5. A Concept Plan prepared by Mann & Troup (Exhibit H).

14. I also note here that the Applicant relies upon two items of correspondence:

1. An Affidavit prepared by the Reverend Mark Cooper, the rector of the parish, which describes certain aspects of current operations on the site (Rev Cooper’s affidavit). Rev Cooper’s affidavit was read in full.

2. A letter from the Bishop of the Diocese of Newcastle (the Diocese), Dr Peter Stuart that, in general terms, explains certain governance arrangements in respect of church property and the congregation (the Bishop’s letter) (Exhibit E).

15. The Respondent approved the amendment in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021, and agreed the amendment was minor for the purposes of s 8.15(3) of the EPA Act.

16. In broad terms, the Respondent contends the proposal:

1. Will have an unacceptable impact on the heritage significance of the item, and

2. Provides insufficient information to enable the required assessment against environmental planning instruments.

The site and its context

17. The site is on the eastern side of Church Street, between Crebert Street to the north and Robert Street to the south. Church Street slopes down from north to south.

18. The site, marked below, is legally described as Lot 3 in DP 544502.

19. The site is surrounded by predominantly residential development in the form of single storey, detached dwellings to the west, north and south of the site, and by two-storey residential development to the east of the site, accessed from Woodbine Street.

20. That said, around 50m to the north of the site stands ‘St Columban’s Church’, and the grounds of St Columban’s Primary School.

21. The site is located within the R3 Medium Density Residential zone as identified in the Newcastle Local Environmental Plan 2012 (NLEP), in which the objectives for development in the R3 zone are:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To allow some diversity of activities and densities if—

(i)  the scale and height of proposed buildings is compatible with the character of the locality, and

(ii)  there will be no significant adverse impact on the amenity of any existing nearby development.

•  To encourage increased population levels in locations that will support the commercial viability of centres provided that the associated new development—

(i)  has regard to the desired future character of residential streets, and

(ii)  does not significantly detract from the amenity of any existing nearby development.

22. Clause 2.6 of the NLEP permits the subdivision of land with consent, and with certain provisos, at subcl (2) that are not applicable here.

23. The site is identified in Sch 5 of the NLEP as a site of local heritage significance (I243).

24. The proceedings commenced with an onsite view, at which the Court, in the company of the legal representatives and experts, observed those aspects of the site at [1]-[2].

The subdivision of land is proposed

25. The subdivision of the land into two Lots is, according to the Respondent in closing submissions, problematic for the reasons that follow:

1. Firstly, by subdividing the land, ownership of the church and cemetery is de-coupled which, by that fact, breaks the historical association between the cemetery and the church.

2. Secondly, because of a number of technical aspects that arise from the subdivision including provision of access to Council’s stormwater drainage and car parking to both Lots 31 and 32.

26. These issues are identified in the Amended Statement of Facts and Contentions (Exhibit 1) in three grounds summarised as follows:

1. Firstly, it fails to promote the sustainable management of built and cultural heritage (s 1.3(f) of the EPA Act),

2. Secondly, it fails to achieve Aims 2-5 of Section 3.01 of the Newcastle Development Control Plan 2012 (NDCP), and objective 8 of Section 3.01.03 of the NDCP

3. Thirdly it is contrary to the objectives and controls at Section 5.05.05 of the NDCP.

27. The aims at Section 3.01 of the NDCP are, relevantly:

“…

2. To minimise adverse impacts on the natural and built environments.

3. To ensure that all lots are physically capable of development.

4. To ensure lots have appropriate levels of amenity, services and access.

5. To achieve efficient use of land.”

28. Section 3.01.03 objective 8 of the NDCP is in the following relevant terms:

“8. Provide adequate open space and recreation areas, vehicle access and parking.”

29. Section 5.05.05 of the NDCP deals with subdivision of land on which a heritage item is located, as follows:

“5.05.05 Subdividing or amalgamating land on which a heritage item is situated

Objectives

1. Ensure that subdivision and amalgamation of land involving a heritage item is commensurate with the heritage significance of the item and conserves the important characteristics of the subdivision pattern and allotment layout.

2. Ensure that subdivision and amalgamation of land involving a heritage item is appropriate with the setting of a heritage item.

3. Ensure that subdivision and amalgamation of land involving a heritage item maintains an appropriate curtilage for the conservation of heritage significance of the item.

4. Allow for the interpretation of the original pattern of the subdivision pattern in any development proposal.

Controls

1. Lot boundary changes not proposed where it is part of the heritage significance of the heritage item.

2. Lot boundary changes to heritage items retains significant features such as trees, gardens, and outbuildings associated with the heritage item.

3. Lot boundary changes to large allotments enables the continuation of the significant building pattern in the precinct or associated with the heritage item.”

30. The Applicant submits that no impact arises from a ‘paper subdivision’, as is proposed, and that subdivision does not involve the use of land, for the reasons shown by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), quoting Sugerman J, at [28]:

“…subdivision itself does not involve any use of land: see Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250; Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151 at 152 and Lyne v Moree Plains Shire Council (1999) 110 LGERA 120. Furthermore, consent for subdivision of land is consent for subdivision simpliciter and does not import any approval for subsequent use for any purpose. In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250, Sugerman J noted:

“Approval of subdivision is approval of subdivision simpliciter and not approval of subdivision for any particular purpose, or with a view to the erection of some particular sort of building, either in the sense that it alone restricts the owners or in the sense that, by approving the particular subdivision, the Council must be taken to have approved of some particular sort of building being erected upon or some particular use being made of, the land.””

31. Here, as in Wehbe, the development application seeks consent for the subdivision of land (s 1.5(1)(b) of the EPA Act). It does not seek consent for any other type of development referred to in the definition of development in s 1.5(1) of the EPA Act. Here, as also in Wehbe, the development application does not seek consent for the use of land (subs (a)) or the erection of a building on the land (subs (b)).

32. Instead, the Applicant seeks consent for ‘subdivision simpliciter’ and cautions the Court to avoid a “pseudo-assessment” of any hypothetical proposal that may be subsequently lodged for the site in the future.

33. In support of its submission, the Applicant invokes the planning principle in Parrott v Kiama [2004] NSWLEC 77, at [17], to the effect that a subdivision application should only consider future buildings when the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours are likely and careful design is needed to minimise them.

34. That said, the Applicant provides a ‘Concept Plan’ prepared by Mann & Troup (Exhibit H) depicting a form of multi-dwelling housing development that the Applicant says shows nothing more than a speculative development to indicate a possible layout for car parking that does not rely upon car parking on the church site, following subdivision.

The car park

35. Car parking on the site is a matter to which Rev Cooper’s affidavit is directed. In summary, Rev Cooper deposes that:

• The carpark contains 38 parking spaces.

• The two dwellings have their own garages and so do not use the carpark.

• Around half of the available parking spaces are used for weekend church services.

• The most intensive use of the carpark results in ‘half to two-thirds’ of the parking spaces being occupied.

36. As a result of the correspondence from the Diocese at [14], the planning expert for the Respondent, Mr Whiteman, confirms that his concerns expressed in the joint report as to car parking for existing operations are addressed.

37. Mr Whiteman also accepts that demand for parking in the carpark located on the proposed Lot 31 would reduce in the event of subdivision, as the functions for which the existing brick parish hall are used would cease.

38. Relatedly, Mr Whiteman accepts those current uses on the site are permissible by virtue of being ancillary to the primary use of the site for church and community purposes, but that any uses to which the proposed future Lot 32 may be put would require consent as the current uses would no longer be ancillary to the use of the church, having disposed of the site.

39. The parties agree that it is appropriate to address the question of car parking on the site by a Car Park Plan of Management (Exhibit D). However, the form of the Plan of Management proposed at the hearing was disputed. In closing submissions, the Applicant proposed to amend the Plan of Management to address two concerns initially pressed by the Respondent, summarised as follows:

1. Firstly, the Respondent identified that as the proposed subdivision aligned to the rear of the southern kerb to the carpark, the vehicles parked in the car park would encroach upon Lot 32 to the extent the front or rear of the vehicle overhangs the kerb.

2. Secondly, the Respondent also identifies a lack of reference in the Plan of Management to signage or supervision that would otherwise enforce the right of vehicle owners to park vehicles in the carpark in a manner consistent with the Plan of management.

40. The Applicant sought directions, unopposed, to amend the Plan of Management to address the two issues pressed by the Respondent.

41. On 17 April 2023, the Applicant filed and served an amended Plan of Management that requires the installation of wheel stops; use best endeavours to ensure the car park is only used by parishioners and visitors to Lot 31 and erect a sign to the same effect.

42. Mr Masia, the Respondent’s engineering expert, supports the use of wheel stops, notwithstanding the reduction in aisle width that results from their use, as the northern extent of the car park is not a vertical wall, as would be the case in a basement, but a kerb that allows a reversing vehicle to overhang. Additionally, vehicles would not protrude beyond the area demarcated for parking. The result is an aisle width that would allow safe manoeuvring of vehicles in the car park.

Existing drainage on the site

43. Stormwater on the site is currently serviced by a modest network of surface and subsurface pipes, pits and grates observed at the onsite view, and in diagrams contained in evidence.

44. The act of subdivision requires certain easements to provide for access for maintenance and repair.

45. Initially, the parties disputed the width of easement on two areas of the site; the northern drain and the southern drain.

46. In closing submissions, the Applicant accepted an easement width of 3m to the northern drain, and amended its position on the width of the southern drain from 1.5m to 2m in width, submitting that any greater width unfairly burdens Lot 31 given the close proximity of the southern drain to the boundary fence with No 31 Church Street.

47. An amended easement width over the southern drain of 2m is also reasonable because it is consistent with a technical manual cited by Mr Masia in oral evidence.

48. Instead, the Respondent relies upon Section 7.06 of the NDCP to press for a 3m wide easement along the alignment of the southern drain. That width is consistent with guidance contained in Section 7.06.02 control 2 in the following terms:

“Structures are not to be located within a drainage easement or where there is no easement, within 1.5m of the centreline of a drainage pipe. Eave overhangs are permitted subject to at least 4.5m clearances to ground level. Footings for buildings should not be founded on material that is shallower than a line drawn at 45 degrees to the vertical from the bottom edge of the existing drainage system.”

49. The Applicant submits that the provision above, if adopted, would result in an easement width of around 1.5m on Lot 32 given the southern drain is located so close to the southern boundary with No 31 Church Street, and the guidance is for the easement width to be determined by reference to the centreline of the drain, with 1.5m applied each side of this centreline. However, the Respondent seeks to double the width nominated in its own DCP by requiring an easement of 3m on the proposed Lot 32.

50. I accept the Applicant’s submission that an easement of 2m is consistent with the relevant technical manual, and that a proper reading of Section 7.06.02 control 2 does not require an easement of 3m, but instead that no structure be located within that distance.

Impact on the heritage item

51. As stated at [25(1)], the Respondent contends that by subdividing the land, ownership of the church and cemetery is de-coupled which, by that act, breaks the historical association between the cemetery and the church.

52. According to Ms Rowlatt, the significance of the cemetery is that it is the earliest remaining element within the site, is associated with the continuous use of the site by the Church of England that is still able to be perceived, and is a place where members of the parish were interred.

53. The interment of those parishioners buried on the site represents material evidence of the mid-nineteenth and early twentieth century Mayfield Anglican community, which is the basis of a strong association with the church operating on the site since the 1860’s.

54. This view is shared by Ms Yousif for whom the loss of the association through subdivision would alienate the cemetery from the remainder of the site, wherein the memory and stories of the Newcastle community lie buried.

55. Dr North considers the cemetery more associated with the cultural landscape of the original church built on the site, and not the church built later in 1924. Aerial images in Exhibit A depict the co-location of the first and second church on the site, identify an area said to show the full extent of the cemetery, and what appears to be the removal of headstones and other visible signs of graves as early as 1950 (Exhibit G, Figure 17, page18).

51. The connection between the cemetery and the church was broken initially with the removal of headstones, followed by the subdivision and sale of the land that included the presbytery and parts of the cemetery on which social housing to the east was developed in the 1970’s.

52. The Applicant submits that the relevant entry in the State Heritage Inventory also makes no reference to the cemetery and is explicit in its focus on the built form of the church building itself. The entry is in the following terms:

“Demonstrates the growth of the church in Mayfield. Unusually refined design for the time. National Trust – possess both historical and social significance as the second church on this site. The architectural style is unique in Newcastle – it stands todays as one of the finest Church edifices in Newcastle. Internal fabric of note.”

58. The Church is identified in the joint expert report prepared by the heritage experts to be a large brick building designed in the Inter-war Gothic style, consisting of white Thornton brickwork with a steep gable and half-hipped awning roof clad in blue Marseilles roof tiles.

59. A Statement of Heritage Impact (SHI) accompanies the development application, prepared by Event Heritage, dated November 2022 (Exhibit G). The SHI states that:

1. The first church built on the site opened on 21 May 1861, was extended in 1877.

2. A rectory was built on the site fronting Church Street, in 1889 and later sold. A new rectory, built in 1904, is located on what is now an adjoining lot to the north-east of the site.

3. The church was replaced with a new church building, completed in 1924.

4. The cemetery associated with the church was one of the earliest in the area. The first burial is recorded in 1862. The last burial is recorded in 1902.

5. In 1957, the St. Andrew’s Church of England, Mayfield, Cemetery Act 1957 No.39 empowered the Trustees to repurpose the cemetery site, sometime after which headstones and other structures were removed from the site. Around the same time, a sandstone monument (‘the monument’) was erected in memory of those buried at the cemetery.

6. In the early 1970’s, the land on which the church stood was subdivided. Lots 1 and 2, located to the east of the church, were sold. Lot 3 included the church building. It was retained and a new rectory and the two dwellings were built east of the church.

7. The site is also listed on the Register of the National Trust (NSW) as ‘St Andrew’s Church of England church and the second rectory and coach house (1904) to the rear of the church’.

8. Five sites of heritage significance are identified within 100m of the site, including:

• St Columban’s Church, at 39 Church Street

• St Columban’s Presbytery, 58 Church street

• Former St Andrew’s Rectory, 5 Durham Street

• Former Hunter Institute of Technology, 52 Havelock Street

• San Clements School, 78 Havelock Street

60. The SHI also contains the following statement of significance for the site, prepared by Dr North and with which the heritage experts agree:

“St Andrew’s Church is of local heritage significance for its historical, social, rarity and representative values. The item is of historical significance as demonstrative of the development of the suburb of Mayfield and its religious institutions through the mid-nineteenth century to the present day. The current church was built in 1924, located on land granted to the Church of England by Simon Kemp in 1860. The original church was located on land to the east of the site, and was demolished after the subdivision of the site in the early 1970s. The site contains additional structures from throughout the twentieth century, demonstrative of the development of uses and activities at the site by the church and the local community. The weatherboard parish hall was constructed on the site in 1904, moved in 1920, and again in c1960 to its current location. The parish hall was used to hold church services prior to the construction of the current church, and was used throughout the twentieth century for various community and church events. The south-eastern portion of the site comprises a former cemetery, in use from c1862-1902. The former cemetery is of historical, social and representative significance at the local level as an early cemetery in the Waratah area, established prior to the opening of Sandgate Cemetery in 1881. The former cemetery is commemorated by a sandstone memorial at the east of the site.

St Andrew’s Church is of aesthetic significance as an inter-war Neo-Gothic church building, demonstrating key aspects of this style. The item has rarity value as an unique example of this style in the Newcastle area, and is a good representative example of the style.”

61. While the statement above ascribes historical, social and representative significance to the former cemetery at a local level, and is agreed by the experts, the statement has no formal status.

62. The entry on the State Heritage Register at [57] is unusually confined to the built form of the church. It does not include reference to the grounds, landscape elements, stone walling, paths, gates or driveway. Most relevantly, it does not reference the former cemetery.

63. I note here that cl 5.10(3) of the NLEP does not require consent for development in a cemetery or burial ground where the proposed development would not cause disturbance to human remains or relics. As no development is proposed, there is no suggestion that human remains are to be disturbed.

64. Further, the last burial was recorded in 1902, and all headstones and other evidence of a cemetery have been removed. Accordingly, I consider the area more appropriately defined as a former cemetery. Likewise, when regard is had to the definition of ‘cemetery’ in the Dictionary of the NLEP, the site is no longer used primarily for the interment of deceased persons, pets, or their ashes, and has not been so used for more than a century.

65. While the Court was not assisted by submissions on the report titled “Archaeology and Heritage Values of Cemetery, St Andrew’s Anglican Church, 31 a Church Street Mayfield, NSW” (Exhibit F, folios 111-249), I also note the summary on folio 177, that:

“The cemetery has, however, lost any historical significance and integrity as the result of:

a) the removal of the burial memorials and headstones: in the absence of burial records in the Parish, there is no way of locating or identifying individual burials;

b) the excision of the eastern sector of the precinct, including the earliest component of the cemetery area, and subsequent re-development of the former cemetery section for accessible housing;

c) the re-establishment of the Old Hall on the south-eastern part of the residual cemetery, which is considered to have made minimal impact on the sub-surface, but acknowledging that there are almost certainly additional residual interments underlying this area.

d) The passage of the Cemetery Act, although that act has apparently been abrogated.”

66. I further note that a relic is defined in the Dictionary of the NLEP in the following terms:

relic has the same meaning as in the Heritage Act 1977.

Note-

The term is defined as follows-

relic means any deposit, artefact, object or material evidence that –

(a) relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and

(b) is of state or local heritage significance.

67. To the extent that consent is required for subdivision, under cl 5.10(2)(f), it is the fact and degree of effect of the subdivision on the heritage significance of the St Andrew’s Church building that I am required to consider.

68. This is because the heritage significance, as it is currently recorded in both Sch 5 of the NLEP, and in the State Heritage Register, is, for whatever reason, vested in the built form of the church building itself.

69. I accept the Applicant’s argument that the subdivision itself does not give rise to any effect on the heritage significance of the church. The subdivision does not materially affect the fabric, settings, views or curtilage of the church. That the stated consequence of subdivision is likely to be a change in ownership of the proposed Lot 32 also does not, of itself, give rise to an impact on the heritage significance of the church, nor of its fabric, settings, views or curtilage.

70. Even if I am mistaken in limiting the heritage significance of the site to the church building at the exclusion of the cemetery, I do not accept that the subdivision imposes any effect upon the heritage significance of the site at all, should the former cemetery be included in the scope of the heritage item.

71. All visible signs of the area of the former cemetery on the subject site are gone. The area presents as a cleared grassed field, on which, it must be said, the weatherboard parish hall stands today.

72. While the Respondent considers the former cemetery to be part of the setting for the church building, there is nothing evident, beyond a modest plaque, distant from the street, that identifies the area of grass as the site of a former cemetery. Any obvious signifiers of a cemetery; headstones, small fenced plots and the like, are gone. As such, the former cemetery does not contribute to the setting of the church other than in the physical space and relief it provides around the church, which is unaffected by the subdivision.

73. As such, the proposal conforms to the objective at Section 5.05.05 of the NDCP to conserve the important characteristics of the subdivision pattern and allotment layout by retaining significant features such as trees, gardens, and outbuildings associated with the heritage item (control 2), and enabling the continuation of the significant building pattern associated with the heritage item (control 3).

74. I also accept the Applicant’s submission that the Court cannot presuppose the nature of development that may be proposed on the proposed Lot 32, although clearly any future development application will need to address those matters to be considered in respect of development in the vicinity of a heritage item, and any effect of the proposal on the heritage item.

75. While the sanctity of a burial ground, in which our fellow travellers on this earth lie interred, is deserving of care and stewardship:

1. Human remains are not proposed to be in any way affected or disturbed by the application before the Court.

2. The Bishop’s letter and Rev Cooper’s affidavit adequately address steps taken to consult with the parish community as to subdivision of the land that includes the site of the former cemetery.

Conditions of consent

76. At the close of proceedings, the Court directed parties to confer in respect of without prejudice conditions of consent, to be filed and served no later than 17 April 2023, with a later extension granted to 21 April 2023.

77. Nine conditions are disputed, that may be tabulated as follows:

Topic

Condition

Carpark

Condition 3

Condition 4

Easements

Condition 5

Heritage management

Condition 9

Condition 10

Condition 11

Condition 12

Use of Lot 32

Condition 13

78. I accept Mr Masia’s evidence at [42] that the use of wheel stops will not impede the use of the car park, and will not result in vehicles protruding beyond the demarcated parking space. As such, there is an alternative to the offset of 600mm in the allotment boundary proposed by the Respondent and the Applicant’s proposed form of Conditions 3 and 4 is adopted.

79. For the reasons set out at [50], it is appropriate for an easement of 2m to be applied to the southern drainage line in the form proposed by the Applicant’s preferred Condition 5.

80. The Respondent proposes a condition be imposed requiring the preparation of a heritage management plan to identify opportunities and constraints arising from the site’s heritage significance.

81. The Applicant submits such a condition is onerous and unreasonable as the proposed Lot 32, to which the condition is directed, contains no items of heritage significance.

82. Clause 5.10(5)(c) of the NLEP provides for the preparation of a heritage management document for development on land that is in the vicinity of a heritage item. While a heritage assessment of the sort at subcl (5)(c) may be a reasonable expectation in support of any future development application on the proposed Lot 32, as no development is proposed on the land by this application, a heritage management plan is not imposed at this time.

83. The parties agree that a Heritage Interpretation Plan (HIP), prepared in accordance with NSW Heritage Office’s, Interpreting Heritage Places and Items Guidelines, (August 2005) is appropriate for the site. The Applicant seeks to limit the scope of the HIP to Lot 31, to remove any requirement for the Respondent’s heritage officer to provide written approval, and to require completion of all actions identified in the HIP within 12 months of the date of the subdivision certificate.

84. In my view, it is inappropriate to constrain the scope of the HIP to Lot 31 by imposition of a condition, as the nature of heritage interpretation often embraces past ownership, uses, former subdivision patterns and the like that extend beyond current lot boundaries. However, I also consider a requirement to demonstrate all recommendations identified in the HIP have been actioned prior to the Subdivision Certificate could have the unintended consequence of unnecessarily limiting the scope and nature of the recommendations of the HIP, without some oversight by the Respondent’s heritage officer.

85. Accordingly, I find it appropriate for the HIP to be provided to the Respondent for written approval by the heritage officer prior to the implementation of the HIP, within 12 months of the date of the subdivision certificate. Condition 10 is so amended.

86. However, given the development application is for subdivision, without physical impact on the heritage item or its setting, I consider it unnecessary for the archival photographic record to be the subject of written approval as sought by the Respondent in Condition 11.

87. Condition 12 deals with recommendations of the SHI, summarised in part at [59]-[60]. The parties dispute whether the SHI recommends the existing low stone wall fronting Church Street be retained as part of development of Lot 32. The Applicant submits the reference at Section 11.1 of the SHI is to Lot 31 only, and, regardless, it is inappropriate to impose a condition seeking to regulate the future development on Lot 32 by condition of consent to the subdivision.

88. I do not understand the recommendations of the SHI to be limited to Lot 31 as suggested by the Applicant. However, I do agree that a condition of consent in respect of the low stone wall on Lot 32 is more appropriate to impose in respect of future development on Lot 32, and not in respect of this subdivision.

89. The Court acknowledges other mechanisms such as a covenant imposed by the Council, which appears permitted by cl 1.9A(2) of the NLEP, were not favoured by the parties and so the Applicant’s preferred form of Condition 12 is adopted.

90. Condition 13, as proposed by the Respondent, seeks to impose a limit on the continued use of the face brick parish hall for a 3-month period after registration of the new lots as there is no lawful consent for the use of the Parish hall other than for uses that are ancillary to the Church.

91. The Applicant submits that future use of Lot 32 is up to a future owner for which a development application may be lodged. Until then, arrangements may be made with any future owner of the proposed Lot 32 to continue the use of the hall as is currently the case. I note this submission is at odds with the reliance otherwise placed by the Applicant on the evidence of Mr Whiteman at [37]-[38] in respect of use of the carpark on the future Lot 31.

92. I consider it appropriate that the Respondent’s form of Condition 13 be imposed given the terms of the condition apply directly to the use of the car park, and is consistent with Clause 6.2 of the Car Park Plan of Management prepared by the Applicant, and cited at Condition 1 of the conditions of consent.

Conclusion

93. For the reasons set out above in this judgment, I find the proposed subdivision warrants the grant of consent in accordance with s 4.16 of the EPA Act, subject to conditions of consent that reflect my findings at [78]-[89], pursuant to s 4.17 of the EPA Act.

Orders

94. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. DA2022/00319, for the subdivision of Lot 3 in DP544502 into 2 lots, being St Andrew’s Anglican Church at 31A Church Street, Mayfield, subject to conditions of consent at Annexure A.

3. All exhibits are returned except for Exhibit B, C and F.

T Horton

Commissioner of the Court

214947.22 Annexure A (173943, pdf)

**********

Decision last updated: 11 May 2023